Robert D. Carrow is an experienced and well recognized Northern California attorney who divides his practice between San Francisco and San Rafael, California, where he maintains offices as an attorney, and London, where he practices from chambers as an English barrister. In light of the fact that studies have shown that approximately 85% of disputes submitted to the Alternative Dispute process are settled prior to trial, Mr. Carrow is supportive of the ADR programs discussed in summary form below.

The most frequent complaints that lawyers hear from their clients are: (1) the cost of the judicial process, even in those cases in which the attorney has been employed on a contingent fee basis, but particularly with regard to litigation in which the client must employ counsel on a hourly basis; (2) the length of time consumed in accomplishing resolution of the subject matter of the dispute; (3) the publicity which often accompanies the traditional trial and (4) the stress and hostility which accompanies court proceedings.

In recent years, primarily at the insistence of the court, and with the encouragement of the vast majority of the legal profession, an effort has been made in most jurisdictions to provide access to methods by which the parties can resolve their disputes economically and more quickly than is possible within the traditional court system. The label put to this effort is "Alternative Dispute Resolution" or "ADR".

In addition to direct negotiation between the parties and/or their attorneys, ADR is generally considered to include mediation, judicial arbitration, judicial settlement conferences, and traditional arbitration. Each of the procedures has as its basic object the reduction of time, cost and the uncertainty that is present in the civil justice system.

In brief summary:

Mediation consists of a voluntary process in which the parties agree to meet privately with a third person, usually one skilled in the process, in an effort to arrive at a mutually agreeable settlement of the dispute. Typically, the mediator, who will have been informed of the differences between the parties by briefs, which may be exchanged between the parties or kept confidential, will first meet jointly with the parties and their attorneys, introduce himself or herself, introduce the parties (often times this is their first meeting), explain the mediation process he intends to follow, outline the dispute in general terms, and assure those involved that anything said in the course of the mediation is confidential, and cannot be used at trial, or for any purpose related to the trial, without the consent of all parties. Usually, a confidentiality agreement is signed by all involved.

The mediator then will meet separately with the parties and act as a go between to facilitate communication between them. Although the mediator may point out in private the strengths and weaknesses of a party's case, and even address particular facts, evidence, tactics and strategy adopted by that party, the arbitrator cannot reveal that information to the other parties without the consent of the party from whom the information was obtained. In most instances, however, those strengths and weaknesses are known to all involved, which facilitates a more open exchange and communication. It is the ultimate object of the mediator to fashion an agreement satisfactory to both parties. The ability of the mediator to convince the parties that: (a) it is in their best interests to avoid the expense and inconvenience of court litigation, and (b) that the proposed settlement ultimately arrived at is fair, together with the good faith and reasonableness of the parties and their counsel, determines whether the mediation process will be successful. Usually, the mediator is a local attorney or a retired judge.

"Judicial" arbitration is a court ordered process by which the parties are directed to meet with an arbitrator selected from a panel made available by the court. Each party has the right to disqualify one of the proposed arbitrators without cause. Should a proposed arbitrator's relationship with any of the parties, or their counsel, or any other factor, create a conflict of interest, or appearance of impropriety, these facts must be called to the attention of the parties in the event the proposed arbitrator does not recuse himself or herself.

The judicial arbitration procedure is informal and is usually held in the law office of the arbitrator. The rules of evidence are much more relaxed than those applied at trial and no record is made of the proceeding, i.e., court reporters are not allowed. As with mediation, the issues are briefed in advance of the arbitration hearing and must of the evidence is presented in written form. Ordinarily, the parties will testify and the arbitrator will make his or her award. Any party has the right to nullify the judicial arbitration award by advising the court in writing of his or her rejection of it and his or her demand for a trial. If the person rejecting the award does not do better at trial, i.e., does not recover more than was awarded him or her by the arbitrator, the adverse party is entitled to recover certain of the costs incurred in the course of the litigation that he or she would otherwise not have been entitled to.

A judicial "settlement conference" is similar in many respects to mediation. Shortly prior to trial, and after completion of discovery, i.e., the judicial fact finding process, a settlement conference is held, the attendance at which is required by the parties and their attorneys. Any involved insurance company must also be represented. The settlement conference may be conducted by a judge, a judge together with members of the bar, or by members of the bar alone. The give and take, private conferences, etc. of the judicial settlement conference mirror the mediation process. If the parties reach settlement, that fact is placed on the record and the upcoming trial cancelled. If agreement is not reached, the case proceeds to trial. Generally, the judicial settlement conference is not as effective as mediation, primarily because of the greater negotiation skills usually possessed by the mediator and the added fact that the conference is held shortly before trial, usually approximately two weeks in advance of trial. At that point, almost all of the trial preparation has been completed, the discovery costs (e.g., investigation; employment, preparation and deposition of expert witnesses; deposition of percipient witnesses; exchange of interrogatories and answers thereto; document production; and in most cases, either mediation or arbitration) have been incurred, ego has become an increasingly more important factor, and substantial attorneys' fees and other costs have been incurred. At the point of the judicial settlement conference, it is almost too late to turn back. For this reason, it is almost universally accepted that the earlier the ADR process commences, the greater the chances of it succeeding.

The fourth ADR procedure is contractual or voluntary arbitration before a neutral person selected by the parties, rather than one chosen from a list presented by the court, as is the case with judicial arbitration. This form of arbitration is adversarial in nature, and is more like a court trial, although held outside the court setting. The rules of evidence are more relaxed than those required at trial, but more formal than those mandated by any of the other ADR procedures. A number of organizations, such as the American Arbitration Association, make available the facilities necessary for arbitration, including a panel of arbitrators experienced in the subject matter involved, from which the parties can chose if such is their wish, meeting room facilities, administrative staff, and the like. The parties to the arbitration often set "high-low" limits on the amount that the arbitrator may award, thus, assuring some recovery but preventing an excessive recovery.

Perhaps the chief deterrent to the arbitration processes, both judicial and voluntary, is the general conception that the arbitrator is inclined, in many instances, to split the baby down the middle. This is particularly the case with judicial arbitration where, on occasion, the judicial arbitrator does not adequately prepare prior to hearing and/or the judicial arbitrator is not qualified to serve in the quasi-judicial role of arbitrator.

Often times, the parties voluntarily, or pursuant to order of court, utilize a combination of the foregoing procedures. For example, the parties may agree that the case will first be mediated and if success is not achieved, any issues not settled will be addressed by voluntary non-binding, or binding arbitration. In any event, if the case does not settle by one of the other ADR means, the litigation will undoubtedly proceed to a judicial settlement conference.

In some instances ADR may be inappropriate to the facts of a particular case, including those instances where the plaintiff's damages cannot be determined within the accelerated schedule contemplated by ADR. Unless agreement can be reached between the parties and the court to delay the ADR proceedings, the plaintiff may be better served by filing a complaint with the court near the end of the period allowed by the applicable claims or limitations period and seeking to have the ADR procedures deferred to the extent permitted by the court, with or without the consent of adverse counsel. Ordinarily, however, once the action is filed, the "fast track" requirements will show no mercy, and the parties will be thrust into the ADR process, or required to go to trial, whether they are fully prepared or not.

Fast track, a concept found attractive in a number of states, and presently being considered in Britain, calls for modification of the rules of civil procedure, and has as its object, inter alia, acceleration of the judicial process by a setting of time deadlines and by increased judicial intervention in case management. For good cause shown, the court can move a particular case into a longer fast track category. The usual justification for doing so is the complexity of the case and in California, the assumed one-year track can be extended to either eighteen or twenty-four months.

Also presenting a significant deterrent to ADR is the requirement that the plaintiff forego a jury trial. Plaintiff's counsel generally perceives that, by virtue of his exceptional oratorical skills, he will obtain a greater recovery from a jury.

Finally, ADR is deterred, particularly in the arbitration context, by the requirement that both parties forfeit any right of appeal of the arbitrator's award. This is particularly significant in those cases where unique issues of law are presented.

The foregoing discussion primarily addresses ADR as utilized in California. Most states offer similar alternative dispute resolution procedures, however, and as noted above and in the "current comments" section of Mr. Carrow's home page, similar procedures are being considered and implemented in England and Wales.

Mr. Carrow has had considerable experience in the ADR process and offers his services as an advocate, mediator or arbitrator.

In addition to the above-mentioned organizations, Mr. Carrow is also a member of the International, American, New York, Los Angeles, San Francisco and Marin County Bar Associations; The Consumer Attorneys of California; The Association of Trial Lawyers of America; The Ontario Trial Lawyers Association (Canada); INCA - International Consultants Association (Paris); The State Bar of California; The Midland-Oxford Circuit (U.K.); Associate, Center for International Legal Studies (Austria); The Inns of Court Society in California (charter director); Phi Delta Phi; The British/American Chamber of Commerce and he holds lifetime membership in The Wig and Pen Club (London).